State v. Southern Cotton Oil Co.

| Ala. | Nov 15, 1899

HARALSON, J.

— -'Common Idav certiorari to revise proceedings of the Board of Revenue of Montgomery county, in the matter of the assessment of escaped privilege taxes, for error apparent on the record.

This case relates'to assessments for the years 1892-1897, both inclusive, which as alleged, had escaped in those years. The assessment for these escapes was made by the -tax assessor of Montgomery county, which, according to the contention of the State, the petitioner was bound to pay under supdivision 5 of section 454 of the Code of 1886.

Sections 3978 and 3979 of 'the Code, embodying sections 14 and 15 of the act of the general assembly of 1896-7, to amend the revenue Laws of the State (Acts 1896-7, p. 1489), relate to the duties of the commissioners’ court in reference to assessments and the correction of errors thereon. By the first of these sections, the judge of probate, to Avhom the assessor has returned his book of assesments, Avhieh inclu'de assessements of eArery character, is required to deliver this book to the court of county commissioners, Avho are required to proceed to examine the same. The next section requires the court to sit, on the first Monday in July for the purpose of hearing and passing on objections made to the assessments. It provides, “If the tax-payer appears in person or by attorney, or has had five days’ notice, the court shall raise or reduce the valuation of any property or subject of taxation, and fix it at the sum the evidence shows to be the fair market value thereof, and shall add such items of taxation and fix the value thereof, as may have escaped assessment.” It is provided, that “from the judgment of the court either party may ayipeal to the next term of the circuit court, when the cause shall be tried de novo etc.” The contention of the appellee is, that under this section of the Code, it had no right of appeal in this case; that tlie appeal, by the terms of the statute, does not include assessments of the character involved here. But, after careful consideration of the statute, we think it involves no violation of the proper rules of construction to hold, that it deals with escapes of all subjects of taxation, whatever may he their character, and that the petitioner, the appellee, had a right of appeal to the circuit court under said last named section, from the judgment of the Board of lie venue in the matter here involved.

We must hold, therefore, that right of appeal was given in the case, under the statute, to the petitioner, which excluded its right to the writ of common laAv certiorari, for it is a familiar principle that this Avrit can only be invoked where there is a legal right and no other legal remedy exists. — Independent P. Co. v. A. P. Asso., 102 Ala. 475" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/independent-publishing-co-v-american-press-assn-6515611?utm_source=webapp" opinion_id="6515611">102 Ala. 475; 15 South. 947; M. & C. R. Co. v. Brannon, 96 Ala. 461" court="Ala." date_filed="1892-11-15" href="https://app.midpage.ai/document/memphis--charleston-railroad-v-brannum-6514839?utm_source=webapp" opinion_id="6514839">96 Ala. 461, 464; 11 South. 468.

It follows, the AArrit of certiorari should luwe been quashed by the lower court on the motion of the State. A judgment will he here rendered, reversing the cause and quashing the Avrit.

ILversed and rendered.